Hellenic Lines v. The Exmouth

• Decision Date: 15 January 1958
• Docket Number: No. 26,Docket 24518.,26
• Citation: 253 F.2d 473
• Parties: HELLENIC LINES, Ltd., owner of THE HELLENIC BEACH, Libellant-Appellant, v. THE EXMOUTH, her engines, boilers, etc., and American Export Lines, Inc., Respondents-Appellees. AMERICAN EXPORT LINES, Inc., as owner of THE EXMOUTH, Libellant-Appellee, Thomas Kenworthy's Sons et al., Cargo Intervenors, v. THE HELLENIC BEACH, her engines, boilers, etc., and Hellenic Lines, Ltd., Respondents-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

253 F.2d 473 (1958)

HELLENIC LINES, Ltd., owner of THE HELLENIC BEACH, Libellant-Appellant, v. THE EXMOUTH, her engines, boilers, etc., and American Export Lines, Inc., Respondents-Appellees.

AMERICAN EXPORT LINES, Inc., as owner of THE EXMOUTH, Libellant-Appellee, Thomas Kenworthy's Sons et al., Cargo Intervenors, v. THE HELLENIC BEACH, her engines, boilers, etc., and Hellenic Lines, Ltd., Respondents-Appellants.

No. 26, Docket 24518.

United States Court of Appeals Second Circuit.

Argued October 10, 1957.

Decided January 15, 1958.

Writ of Certiorari Denied May 26, 1958.

Wilbur E. Dow, Jr., New York City (Raymond W. Mitchell, Sonya I. Livshin, and Dow & Stonebridge, New York City, on the brief), for Libelant-Appellant, Hellenic Lines, Ltd., owner of S.S. Hellenic Beach.

James M. Estabrook, New York City (Kenneth Gardner, Walter A. Darby, Jr., and Haight, Gardner, Poor & Havens, New York City, on the brief), for Respondent-Libelant-Appellee, American Export Lines, Inc.

Charles A. Van Hagen, Jr., New York City (Bigham, Englar, Jones & Houston, New York City, on the brief), for Cargo Intervenors-Appellees, Thomas Kenworthy's Sons et al.

Before CLARK, Chief Judge, and LUMBARD and MOORE, Circuit Judges.

Writ of Certiorari Denied May 26, 1958. See 78 S.Ct. 1006.

MOORE, Circuit Judge.

Shortly after two o'clock in the morning of June 5, 1949 the S.S. Hellenic Beach, owned by Hellenic Lines, Ltd. (libelant-appellant, referred to as "Hellenic"), collided near the entrance to Delaware Bay with the S.S. Exmouth, owned by American Export Lines, Inc. (respondent-libelant-appellee, referred to as "Exmouth").

A libel was filed by Hellenic against Exmouth and a cross-libel filed by Exmouth against Hellenic. In their respective answers Hellenic and Exmouth each accused the other of being at fault. Upon the trial, Thomas Kenworthy's Sons, et al., cargo intervenors, obtained a stipulation that they would be entitled to an interlocutory decree for damage to cargo (some 300 bales of rock wool) on board the Exmouth should the court hold that Hellenic was solely at fault or that there was mutual fault. The trial court held both vessels at fault. From an interlocutory decree adjudging that Hellenic and Exmouth each recover one-half of their respective damages, including cargo damages, against the other, Hellenic and Exmouth appeal.

Hellenic is a Liberty ship, gross tonnage 7207 tons, 2500 horsepower and a maximum speed of 10½ to 11 knots. Exmouth is a Victory ship, 8500-ton class and a maximum speed of some 17 knots. Hellenic was carrying a cargo of 5,000 tons of grain and 300 tons of general cargo; Exmouth had about 133 tons of cargo on board.

Less than a half hour before the collision Exmouth, bound from New York to Philadelphia, was anchored because of fog approximately one and one-half miles southeast of Overfalls Lightship near the entrance of Delaware Bay. At about ten minutes before 2:00 A.M. she weighed anchor and proceeded in a westerly direction passing the lightship about one-quarter mile south. At approximately the same time Hellenic, which had stopped to drop its river pilot at a point some 1.4 miles in a northwesterly direction (290° true) from the lightship, resumed its course (124° true) towards the ocean. Prior to the collision each vessel observed the lights and the course of the other although there is a fairly substantial difference in the estimate of the miles they were apart at the time. Visibility was about five miles and there was a northwesterly tidal current of over two knots.

On the bridge of Hellenic were the master, the second mate and the helmsman. The Hellenic observed the masthead lights and the green starboard light of Exmouth about 2 to 4 points on her port bow. On the bridge of Exmouth were the master, the third mate and the helmsman. The Exmouth observed the lights of Hellenic which was showing its red port light about 4 points on the starboard bow.

Under the rules of the road Hellenic was clearly the privileged vessel (Art. 19, 33 U.S.C.A. § 204). Exmouth was the burdened vessel and under a duty to keep clear of Hellenic and to give way. On the trial the Exmouth Captain himself admitted that "the Exmouth had to keep out of the way, we were the burdened vessel." and Exmouth's third mate said that the rules required Exmouth "To give way, to stop engines or to reverse." She engaged in none of these operations but continued on at a speed of 15½ to 16 knots.

As the vessels approached each other the Hellenic blew one blast when the ships were about one-half mile apart signifying a port-to-port passing. This signal being unanswered by Exmouth, Hellenic blew another blast when they were about one-quarter of a mile apart. Exmouth then blew two blasts. Because of this cross-signal Hellenic put her helm hard right and her engines full astern. There was also testimony that she blew several short blasts as an alarm signal. Exmouth continued on without slackening her speed and while crossing Hellenic's bow was struck by Hellenic somewhat abaft her beam in the vicinity of Exmouth's number 4 hold, at an angle estimated at about 110°. Although Hellenic's bow cut into Exmouth's side the ships did not lock and Hellenic fell off astern of the Exmouth.

After Hellenic was sighted by Exmouth there was considerable confusion on Exmouth's bridge. Being the burdened vessel it was Exmouth's duty to keep clear of Hellenic. Had Exmouth veered to the right in a northerly direction a port-to-port passing could have been effected. This should have been normal procedure regardless of the presence of Hellenic because the pilot boat and Exmouth's ultimate destination were toward the north. Continuation of a due westerly course would have caused Exmouth to run ashore in a very short time. The Captain of Exmouth, however, gave the command to come to the left. The helmsman said "You mean right, Captain" and immediately the third mate added "Yes, that's right, you will have to come to the right." The Captain, nevertheless, persisted by saying "Hard left" and the helmsman obeyed these orders. If Exmouth had turned to the right at the time the Hellenic was observed, the collision could undoubtedly have been avoided. Finally, when the vessels were but a short distance apart the Exmouth Captain ordered the helmsman to come to the right but too late to avoid collision.

The fault of Exmouth was clearly stated in the opinion of the trial court as follows: "The `Exmouth' not only failed to keep out of the way of the `Hellenic Beach' in clear violation of Rule 19, supra (33 U.S.C. sec. 204), but her master navigated her in such a faulty manner as to make the collision inevitable. There was testimony to the effect that Captain Ecklund was intoxicated during his aforementioned supervision of the navigation of the `Exmouth' but, regardless of the cause of his faulty navigation, there appears to be no doubt that he operated the `Exmouth' in clear violation of International Rule 19 (33 U.S.C. sec. 204)."

The trial court, however, also found that Hellenic was at fault. In his opinion he said that Hellenic "did nothing to avoid the collision which was then so imminent" and found that she was "bound to take the necessary precautionary action to avoid the collision under the special circumstances of the situation * * *" The testimony is undisputed that Exmouth did not diminish her speed and that her navigation at the time of approaching danger was highly confused. The evidence is clear that it was Hellenic that took such actions as were possible in view of Exmouth's navigation in an endeavor to avoid a collision. The conclusion is inescapable that Exmouth was solely at fault.

Under ordinary circumstances Hellenic, as the privileged vessel, was entitled to maintain her course and speed. If Hellenic had to speculate that Exmouth would not obey the rules and engage in avoiding action on that assumption, the rules might as well be discarded. Navigation would be reduced to a game of bluff (Wilson v. Pacific Mail S. S. Co., 276 U.S. 454, 48 S.Ct. 369, 72 L.Ed. 651; The Delaware, 161 U.S. 459, 16 S.Ct. 516, 40 L.Ed. 771; National Bulk Carriers v. United States, 2 Cir., 1950, 183 F.2d 405; Pacific-Atlantic S. S. Co. v. United States, 4 Cir., 1949, 175 F.2d 632). Exmouth's duty was well defined in The Nereus, D.C.S.D.N.Y.1885, 23 F. 448, 455, the court saying: "A steamer bound to keep out of the way of another steamer by going to the right, * * * has no right, when under no stress of circumstances, but merely for her own convenience, to give the other steamer a signal of two whistles, importing that she will go to the left, unless she can do so safely by her own navigation, without aid from the other, and without requiring the other steamer to change her course or her speed. Otherwise she would be imposing upon the latter steamer more or less of the burden and the duty of keeping out of the way, which by statute is imposed on herself."

This does not mean that the last clear chance rule strongly advanced by Exmouth is to be ignored. Its application, however, depends upon the facts. Here Exmouth had ample room and time in which to maneuver to avoid the collision. Hellenic had every reason to believe that Exmouth would keep clear. Only when Hellenic heard Exmouth's two blasts was there any indication to the contrary. Even then it was Hellenic which reversed at full speed. Exmouth did nothing to avoid a collision although its two blasts showed consciousness of danger. Upon the facts the last clear chance rule cannot be availed of by Exmouth to create a mutual liability situation.

Exmouth and the court below rely heavily upon a case brought against American Export Lines, Inc., and Hellenic Lines, Inc., by Rivera, a seaman on the Exmouth, for injuries sustained in the collision as establishing mutual fault and liability. The trial court found as a conclusion of law that the verdict for personal injury damages in that case "is dispositive of...